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States take notice of the indulgence of a State to commit

treason? The common saying, that a State cannot commit

treason herself, is nothing to the purpose. Can she autho-

rize others to do it? If John Fries had produced an act of

Pennsylvania, annulling the law of Congress, would it have

helped his case? Talk about it as we will, these doctrines go

the length of revolution. They are incompatible with any

peaceable administration of the Government. They lead

directly to disunion and civil commotion; and, therefore, it

is, that at their commencement, when they are first found

to be maintained by respectable men, and in a tangible

form, I enter my public protest against them all.

The honorable gentleman argues, that if this Govern-

ment be the sole judge of the extent of its own powers,

whether that right of judging be in Congress, or the

Supreme Court, it equally subverts State sovereignty. This

the gentleman sees, or thinks he sees, although he cannot

perceive how the right of judging, in this matter, if left to

the exercise of State Legislatures, has any tendency to sub-

vert the Government of the Union. The gentleman’s opin-

ion may be, that the right ought not to have the lodged

with the General Government; he may like better such a

Constitution, as we should have under the right of State

interference; but I ask him to meet me on the plain matter

of fact—I ask him to meet me on the Constitution itself—

I ask him if the power is not found there—clearly and vis-

ibly found there?—Note 3.

But, sir, what is this danger, and what the grounds of it?

Let it be remembered, that the Constitution of the United

States is not unalterable. It is to continue in its present form

no longer than the People who established it shall choose to

continue it. If they shall become convinced that they have

made an injudicious or inexpedient partition and distribu-

tion of power, between the State Governments and the

General Government, they can alter that distribution at will.

If any thing be found in the National Constitution,

either by original provision, or subsequent interpretation,

which ought not to be in it, the People know how to get rid

of it. If any construction be established, unacceptable to

them, so as to become, practically, a part of the Constitu-

tion, they will amend it, at their own sovereign pleasure.

But while the people chuse to maintain it, as it is; while

they are satisfied with it, and refuse to change it; who has

given, or who can give, to the State Legislatures a right to

alter it, either by interference, construction, or otherwise?

Gentlemen do not seem to recollect that the People have

any power to do any thing for themselves; they imagine

there is no safety for them, any longer than they are under

the close guardianship of the State Legislatures. Sir, the

People have not trusted their safety, in regard to the gen-

eral Constitution, to these hands. They have required

other security, and taken other bonds. They have chosen in

trust themselves, first, to the plain words of the instru-

ment, and to such construction as the Government itself,

in doubtful cases, should put on its own powers, under

their oaths of office, and subject to their responsibility to

them; just as the People of a State trust their own State

Governments with a similar power. Secondly, they have

reposed their trust in the efficacy of frequent elections,

and in their own power to remove their own servants and

agents, whenever they see cause. Thirdly, they have

reposed trust in the Judicial power, which, in order that it

might be trust-worthy, they have made as respectable, as

disinterested, and as independent as was practicable.

Fourthly, they have seen fit to rely, in case of necessity, or

high expediency, on their known and admitted power, to

alter or amend the Constitution, peaceably and quietly,

whenever experience shall point out defects or imperfec-

tions. And, finally, the People of the United States have, at

not time, in no way, directly or indirectly, authorized any

State Legislature to construe or interpret their high instru-

ment of Government; much less to interfere, by their own

power, to arrest its course and operation.

If, sir, the People, in these respects, had done other-

wise than they have done, their Constitution could neither

have been preserved, nor would it have been worth pre-

serving. And, if its plain provisions shall now be disre-

garded, and these new doctrines interpolated in it, it will

become as feeble and helpless a being as its enemies,

whether early or more recent, could possibly desire. It will

exist in every State, but as a poor dependent on State per-

mission. It must borrow leave to be; and will be, no longer

than State pleasure, or State discretion, sees fit to grant the

indulgence, and to prolong its poor existence.

But, sir, although there are fears, there are hopes also.

The People have preserved this, their own chosen Consti-

tution, for forty years, and have seen their happiness, pros-

perity, and renown, grow with its growth, and strengthen

with its strength. They are now, generally, strongly

attached to it. Overthrown by direct assault, it cannot be;

evaded, undermined, Nullified it will not be, if we, and

those who shall succeed us here, as agents and representa-

tives of the People, shall conscientiously and vigilantly

discharge the two great branches of our public trust—

faithfully to preserve, and wisely to administer it.

Mr. President, I have thus stated the reasons of my

dissent to the doctrines which have been advanced and

maintained. I am conscious of having detained you and the

Senate much too long. I was drawn into the debate, with

no previous deliberation such as is suited to the discussion

of so grave and important a subject. But it is a subject of

which my heart is full, and I have not been willing to sup-

press the utterance of its spontaneous sentiments. I can-

not, even now, persuade myself to relinquish it, without

expressing, once more, my deep conviction, that, since it

respects nothing less than the Union of the States, it is of

612 ERA 4: Expansion and Reform

most vital essential importance to the public happiness. I

profess, sir, in my career, hitherto, to have kept steadily in

view the prosperity and honor of the whole country, and

preservation of our Federal Union. It is to that Union we

owe our safety at home, and our consideration and dignity

abroad. It is to that Union that we are chiefly indebted for

whatever makes us most proud of our country. That Union

we reached only by the discipline of our virtues in the

severe school of adversity. It had its origin in the necessi-

ties of disordered finance, prostrate commerce, and ruined

credit. Under its benign influences, these great interests

immediately awoke, as from the dead, and sprang forth

with newness of life. Every year of its duration has teemed

with fresh proofs of its utility and its blessings; and,

although our territory has stretched out wider and wide,

and our population spread farther and farther, they have

not outrun its protection or its benefits. It has been to us

all a copious fountain of national, social, and personal hap-

piness. I have not allowed myself, sir, to look beyond the

Union, to see what might lie hidden in the dark recess

behind. I have not cooly weighed the chances of preserv-

ing liberty, when the bonds that unite us together shall be

broken asunder. I have not accustomed myself to hang

over the precipice of disunion, to see whether, with my

short sight, I can fathom the depth of the abyss below; nor

could I regard him as a safe counsellor in the affairs of this

Government, whose thoughts should be mainly bent on

considering, not how the Union should be best preserved,

but how tolerable might be the condition of the People

when it shall be broken up and destroyed. While the

Union lasts, we have high, exciting, gratifying prospects

spread out before us, for us, and our children. Beyond that

I seek not to penetrate the veil. God grant that, in my day,

at least, that curtain may not rise. God grant that on my

vision never may be opened what lies behind. When my

eyes shall be turned to behold, for the last time, the sun in

Heaven, may I not see him shining on the broken and dis-

honored fragments of a once glorious Union; on States dis-

severed, discordant, belligerent; on a land rent with civil

feuds, or drenched, it may be, in fraternal blood! Let their

last feeble and lingering glance, rather behold the gor-

geous Ensign of the Republic, now known and honored

throughout the earth, still high advanced, its arms and tro-

phies streaming in their original lustre, not a stripe erased

or polluted, nor a single star obscured—bearing for its

motto, no such miserable interrogatory as, What is all

this worth? Nor those other words of delusion and folly,

Liberty, first, and Union, afterwards—but every where,

spread all over in characters of living light, blazing on all its

ample folds, as they float over the sea and over the land,

and in every wind under the whole Heavens, that other

sentiment, dear to every true American heart—Liberty

and Union, now and forever, one and inseparable!

Source:

Charles M. Wiltse, ed. The Papers of Daniel Webster. Ser. 4, Vol.

1. Hanover, N.H.: Dartmouth College University Press of

New England, 1974.

Indian Removal Act of 1830

Federal legislation enacted on May 28, 1830, authorizing the

president to exchange land west of the Mississippi River for

eastern lands held by the Indians. The act codified a policy

proposed by President Andrew Jackson to allow increased

white settlement in the East. In the subsequent decade,

approximately 100,000 Native Americans were removed to

the Great Plains, where whites were not interested in settling

at that time. Under this act, many northern tribes were re-

moved from their homes and the land they had inhabited for

thousands of years. The southeastern Cherokee appealed to

the Supreme Court and won, only to have President Jackson

ignore the decision, stating, “John Marshall has made his deci-

sion; let him enforce it now if he can.” (John Marshall was the

chief justice of the Supreme Court.) Consequently, the Chero-

kee were forcibly deported to the West by the U.S. military in

what came to be known as the “Trail of Tears.”

________________________

_______________________

An Act

To provide for an exchange of lands with the Indians resid-

ing in any of the states or territories, and for their removal

west of the river Mississippi.

Be it enacted by the Senate and House of Representa-

tives of the United States of America, in Congress assem-

bled, That it shall and may be lawful for the President of

the United States to cause so much of any territory belong-

ing to the United States, west of the river Mississippi, not

included in any state or organized territory, and to which

the Indian title has been extinguished, as he may judge

necessary, to be divided into a suitable number of districts,

for the reception of such tribes or nations of Indians as

may choose to exchange the lands where they now reside,

and remove there; and to cause each of said districts to be

so described by natural or artificial marks, as to be easily

distinguished from every other.

Sec. 2. And be it further enacted, That it shall and may

be lawful for the President to exchange any or all of such

districts, so to be laid off and described, with any tribe or

nation of Indians now residing within the limits of any of

the states or territories, and with which the United States

have existing treaties, for the whole or any part or portion

of the territory claimed and occupied by such tribe or

nation, within the bounds of any one or more of the states

or territories, where the land claimed and occupied by the

Indians, is owned by the United States, or the United

Territorial Expansion, Political and Economic Developments, and International Relations 613

States are bound to the state within which it lies to extin-

guish the Indian claim thereto.

Sec. 3. And be it further enacted, That in the making

of any such exchange or exchanges, it shall and may be

lawful for the President solemnly to assure the tribe or

nation with which the exchange is made, that the United

States will forever secure and guaranty to them, and their

heirs or successors, the country so exchanged with them;

and if they prefer it, that the United States will cause a

patent or grant to be made and executed to them of the

same: Provided always, That such lands shall revert to the

United States, if the Indians become extinct, or abandon

the same.

Sec. 4. And be it further enacted, That if, upon any of

the lands now occupied by the Indians, and to be

exchanged for, there should be such improvements as add

value to the land claimed by any individual or individuals

of such tribes or nations, it shall and may be lawful for the

President to cause such value to be ascertained by

appraisement or otherwise, and to cause such ascertained

value to be paid to the person or persons rightfully claim-

ing such improvements. And upon the payment of such

valuation, the improvements so valued and paid for, shall

pass to the United States, and possession shall not after-

wards be permitted to any of the same tribe.

Sec. 5. And be it further enacted, That upon the mak-

ing of any such exchange as is contemplated by this act, it

shall and may be lawful for the President to cause such aid

and assistance to be furnished to the emigrants as may be

necessary and proper to enable them to remove to, and

settle in, the country for which they may have exchanged;

and also, to give them such aid and assistance as may be

necessary for their support and subsistence for the first

year after their removal.

Sec. 6. And be it further enacted, That it shall and may

be lawful for the President to cause such tribe or nation to

be protected, at their new residence, against all interrup-

tion or disturbance from any other tribe or nation of Indi-

ans, or from any other person or persons whatever.

Sec. 7. And be it further enacted, That it shall and may

be lawful for the President to have the same superinten-

dence and care over any tribe or nation in the country to

which they may remove, as contemplated by this act, that

he is now authorized to have over them at their present

places of residence: Provided, That nothing in this act con-

tained shall be construed as authorizing or directing the

violation of any existing treaty between the United States

and any of the Indian tribes.

Sec. 8. And be it further enacted, That for the purpose

of giving effect to the provisions of this act, the sum of

five hundred thousand dollars is hereby appropriated, to

be paid out of any money in the treasury, not otherwise

appropriated.

See also

CHEROKEE CASES AND ANDREW JACKSON

MES

SAGE ON REMOVAL OF SOUTHERN INDIANS

Source:

Statutes at Large. Vol. 4, pp. 411–412.

Worcester v. Georgia, 1832

Two cases derived from Georgia’s attempts to take over lands

held by the Cherokees according to prior treaties. The first

decision,

Cherokee Nation v. Georgia

, was issued by the U.S.

Supreme Court on March 18, 1831. It defined the legal status

of Native Americans as “domestic dependent nations,” not

foreign nations.

Worcester v. Georgia

in 1832 eventually led

to the Cherokee removal from Georgia to Oklahoma. In the

early 19th century, the rich Cherokee lands in Georgia were

coveted by white settlers. When the Georgia legislature in

1828 passed statutes claiming ownership of all Cherokee ter-

ritory and annulling all Cherokee laws and customs, the

Native Americans sought a U.S. Supreme Court injunction to

prevent the execution of these laws. Writing for the majority,

Chief Justice John Marshall ruled that the Court had no juris-

diction over the case because the Cherokees did not consti-

tute a foreign nation with sovereignty rights over their own

lands.

A year later, in

Worcester v. Georgia

, the Supreme Court

declared that the Cherokee Nation was under the jurisdiction

of the United States government, not the Georgia state gov-

ernment. The case arose when missionary Samuel A. Worces-

ter and others violated a Georgia statute requiring white men

who lived in Cherokee territory to take an oath of allegiance

to the state and to obtain a license. Their conviction was

reversed in this decision, but Georgia refused to obey the deci-

sion. The ruling also angered President Andrew Jackson, who

refused to enforce it. This case was part of Georgia’s effort to

secure sovereignty over Cherokee lands.

Efforts to remove Indians were continued in Florida. On

May 9, 1832, the United States and the Seminole Indians con-

cluded a treaty that provided for the tribe’s removal from

Florida to the Indian Territory west of the Mississippi River. The

Seminole, as one of the Five Civilized Tribes of the American

Southeast, were a target of the federal Native American

removal policy initiated in the late 1820s in response to wor-

sening frontier clashes between white settlers and the Native

tribes upon whose lands they were encroaching. By terms of

the treaty, negotiated at Payne’s Landing between U.S. repre-

sentative James Gadsden and Seminole chiefs, the Seminole

ceded all their land in Florida to the United States and agreed

to emigrate to an allocated area west of the Mississippi. Con-

sent to removal was contingent upon the tribe being able to

send a deputation to judge the quality of the designated lands.

The United States pledged to cover the costs of relocation and

614 ERA 4: Expansion and Reform

of feeding the tribe for one year after their arrival in the Indian

Territory. The tribal deputation raised no objection to reloca-

tion, and the Payne’s Landing Treaty was effectively ratified by

a follow-up treaty of March 28, 1833.

________________________

_______________________

Mr. Chief Justice Marshall delivered the opinion of the

Court.

This cause, in every point of view in which it can be

placed, is of the deepest interest.

The defendant is a state, a member of the union,

which has exercised the powers of government over a peo-

ple who deny its jurisdiction, and are under the protection

of the United States.

The plaintiff is a citizen of the state of Vermont, con-

demned to hard labour for four years in the penitentiary of

Georgia; under colour of an act which he alleges to be

repugnant to the constitution, laws, and treaties of the

United States.

The legislative power of a state, the controlling po-

wer of the constitution and laws of the United States,

the rights, if they have any, the political existence of a

once numerous and powerful people, the personal liberty

of a citizen, are all involved in the subject now to be

considered.

It behoves this court, in every case, more especially

in this, to examine into its jurisdiction with scrutinizing

eyes; before it proceeds to the exercise of a power which is

controverted.

The first step in the performance of this duty is the

inquiry whether the record is properly before the court.

It is certified by the clerk of the court, which pro-

nounced the judgment of condemnation under which the

plaintiff in error is imprisoned; and is also authenticated by

the seal of the court. It is returned with, and annexed to, a

writ of error issued in regular form, the citation being

signed by one of the associate justices of the supreme

court, and served on the governor and attorney-general of

the state, more than thirty days before the commencement

of the term to which the writ of error was returnable.

The judicial act . . . so far as it prescribes the mode of

proceeding, appears to have been literally pursued.

* * *

The record, then, according to the judiciary act, and the

rule and the practice of the court, is regularly before us.

The more important inquiry is, does it exhibit a case cog-

nizable by this tribunal?

The indictment charges the plaintiff in error, and oth-

ers, being white persons, with the offence of “residing

within the limits of the Cherokee nation without a license,”

and “without having taken the oath to support and defend

the constitution and laws of the state of Georgia.”

The defendant in the state court appeared in proper

person, and filed the following plea:

“And the said Samuel A. Worcester, in his own proper

person, comes and says, that this court ought not to take

further cognizance of the action and prosecution aforesaid,

because, he says, that, on the 15th day of July in the year

1831, he was, and still is, a resident in the Cherokee

nation; and that the said supposed crime or crimes, and

each of them, were committed, if committed at all, at the

town of New Echota, in the said Cherokee nation, out of

the jurisdiction of this court, and not in the county Gwin-

nett, or elsewhere, within the jurisdiction of this court: and

this defendant saith, that he is a citizen of the state of Ver-

mont, one of the United States of America, and that he

entered the aforesaid Cherokee nation in the capacity of a

duly authorised missionary of the American Board of

Commissioners for Foreign Missions, under the authority

of the president of the United States, and has not since

been required by him to leave it: that he was, at the time

of his arrest, engaged in preaching the gospel to the

Cherokee Indians, and in translating the sacred scriptures

into their language, with the permission and approval of

the said Cherokee nation, and in accordance with the

humane policy of the government of the United States for

the civilization and improvement of the Indians; and that

his residence there, for this purpose, is the residence

charged in the aforesaid indictment: and this defendant

further saith, that this prosecution the state of Georgia

ought not to have or maintain, because, he saith, that sev-

eral treaties have, from time to time, been entered into

between the United States and the Cherokee nation of

Indians . . . by which treaties, the United States of Amer-

ica acknowledge the said Cherokee nation to be a

sovereign nation, authorised to govern themselves, and all

persons who have settled within their territory, free from

any right of legislative interference by the several states

composing the United States of America . . . . That the laws

of the state of Georgia, which profess to add the said terri-

tory to the several adjacent counties of the said state, and

to extend the laws of Georgia over the said territory, and

persons inhabiting the same; and, in particular, the act on

which this indictment against this defendant is grounded

. . . are repugnant to the aforesaid treaties; which, accord-

ing to the constitution of the United States, compose a part

of the supreme law of the land; and that these laws of

Georgia are, therefore, unconstitutional, void, and of no

effect; that the said laws of Georgia are also unconstitu-

tional and void, because they impair the obligation of the

various contracts formed by and between the aforesaid

Cherokee nation and the said United States of Amer-

ica…and because the said laws are repugnant to the

statute of the United States, passed on the—day of March

1802, entitled ‘an act to regulate trade and intercourse

Territorial Expansion, Political and Economic Developments, and International Relations 615

with the Indian tribes, and to preserve peace on the fron-

tiers:’ and that, therefore, this court has no jurisdiction . . .

and, therefore, this defendant prays judgment whether he

shall be held bound to answer further to said indictment.”

This plea was overruled by the court. And the pris-

oner, being arraigned, plead not guilty. The jury found a

verdict against him, and the court sentenced him to hard

labour, in the penitentiary, for the term of four years.

By overruling this plea, the court decided that the

matter it contained was not a bar to the action. The plea,

therefore, must be examined, for the purpose of deter-

mining whether it makes a case which brings the party

within the provisions of the twenty-fifth section of the “act

to establish the judicial courts of the United States.”

* * *

The indictment and plea in this case draw in question, we

think, the validity of the treaties made by the United States

with the Cherokee Indians; if not so, their construction is

certainly drawn in question; and the decision has been, if

not against their validity, “against the right, privilege or

exemption, specially set up and claimed under them.”

They also draw into question the validity of a statute of the

state of Georgia, “on the ground of its being repugnant to

the constitution, treaties and laws of the United States, and

the decision is in favour of its validity.”

It is, then, we think, too clear for controversy, that the

act of congress, by which this court is constituted, has

given it the power, and of course imposed on it the duty, of

exercising jurisdiction in this case. This duty, however

unpleasant, cannot be avoided. . . .

It has been said at the bar, that the acts of the legisla-

ture of Georgia seize on the whole Cherokee country, par-

cel it out among the neighbouring counties of the state,

extend her code over the whole country, abolish its institu-

tions and its laws, and annihilate its political existence.

If this be the general effect of the system, let us

inquire into the effect of the particular statute and section

on which the indictment is founded.

It enacts that “all white persons, residing within the

limits of the Cherokee nation on the 1st day of March next,

or at any time thereafter, without a license or permit from

his excellency the governor, or from such agent as his

excellency the governor shall authorise to grant such per-

mit or license, and who shall not have taken the oath here-

inafter required, shall be guilty of a high misdemeanour,

and, upon conviction thereof, shall be punished by con-

finement to the penitentiary, at hard labour, for a term not

less than four years.”

The eleventh section authorises the governor, should

be deem it necessary for the protection of the mines, or

the enforcement of the laws in force within the Cherokee

nation, to raise and organize a guard,” &c.

The thirteenth section enacts, “that the said guard or

any member of them, shall be, and they are hereby autho-

rised and empowered to arrest any person legally charged

with or detected in a violation of the laws of this state, and

to convey, as soon as practicable, the person so arrested,

before a justice of the peace, judge of the superior, or jus-

tice of inferior court of this state, to be dealt with accord-

ing to law.”

The extra-territorial power of every legislature being

limited in its action, to its own citizens or subjects, the very

passage of this act is an assertion of jurisdiction over the

Cherokee nation, and of the rights and powers consequent

on jurisdiction.

The first step, then, in the inquiry, which the constitu-

tion and laws impose on this court, is an examination of the

rightfulness of this claim.

* * *

The same stipulation entered into with the United States,

is undoubtedly to be construed in the same manner. They

receive the Cherokees nation into their favour and protec-

tion. The Cherokee acknowledge themselves to be under

the protection of the United States, and of no other power.

Protection does not imply the destruction of the protected.

The manner in which this stipulation was understood by

the American government, is explained by the language

and acts of our first president.

* * *

The treaties and laws of the United States contemplate the

Indian territory as completely separated from that of the

states; and provide that all intercourse with them shall be

carried on exclusively by the government of the union.

Is this rightful exercise of power, or is it usurpation?

The Indian nations had always been considered as dis-

tinct, independent political communities, retaining their

original natural rights, as the undisputed possessors of the

soil, from time immemorial, with the single exception of

that imposed by irresistible power, which excluded them

from intercourse with any other European potentate than

the first discover of the coast of the particular region

claimed: and this was a restriction which those European

potentates imposed on themselves, as well as on the Indi-

ans. The very term “nation,” so generally applied to them,

means “a people distinct from others.” The constitution, by

declaring treaties already made, as well as those to be

made, to be the supreme law of the land, has adopted and

sanctioned the previous treaties with the Indian nations,

and consequently admits their rank among those powers

who are capable of making treaties. The words “treaty” and

“nation” are words of our own language, selected in our

diplomatic and legislative proceedings, by ourselves, hav-

ing each a definite and well understood meaning. We have

616 ERA 4: Expansion and Reform

applied them to Indians, as we have applied them to the

other nations of the earth. They are applied to all in the

same sense.

Georgia, herself, has furnished conclusive evidence

that her former opinions on this subject concurred with

those entertained by her sister states, and by the govern-

ment of the United States. Various acts of her legislature

have been cited in the argument, including the contract of

cession made in the year 1802, all tending to prove her

acquiescence in the universal conviction that the Indian

nations possessed a full right to the lands they occupied,

until the right should be extinguished by the United States,

with their consent: that their territory was separated from

that of any state within whose chartered limits they might

reside, by a boundary line, established by treaties: that,

within their boundary, they possessed rights with which no

state could interfere: and that the whole power of regulat-

ing the intercourse with them, was vested in the United

States. A review of these acts, on the part of Georgia,

would occupy too much time, and is the less necessary,

because they have been accurately detailed in the argu-

ment at the bar. Her new series of laws, manifesting her

abandonment of these opinions, appears to have com-

menced in December 1828.

In opposition to this original right, possessed by the

undisputed occupants of every country; to this recognition

of that right, which is evidenced by our history, in every

change through which we have passed; is placed the char-

ters granted by the monarch of a distant and distinct

region, parcelling out a territory in possession of others

whom he could not remove and did not attempt to remove,

and the cession made of his claims by the treaty of peace.

* * *

The Cherokee nation, then, is a distinct community occu-

pying its own territory, with boundaries accurately

described, in which the law of Georgia can have no force,

and which the citizens of Georgia have no right to enter,

but with the assent of the Cherokees themselves, or in con-

formity with treaties, and with the acts of congress. The

whole intercourse between the United States and this

nation, is, by our constitution and laws, vested in the gov-

ernment of the United States.

The act of the state of Georgia, under which the plain-

tiff in error was prosecuted, is consequently void, and the

judgment a nullity. Can this court revise, and reverse it?

If the objection to the system of legislation, lately

adopted by the legislature of Georgia, in relation to the

Cherokee nation, was confined to its extra-territorial oper-

ation, the objection, though complete, so far as respected

mere right, would give this court no power over the sub-

ject. But it goes much further. If the review which has

been taken be correct, and we think it is, the acts of Geor-

gia are repugnant to the constitution, laws, and treaties of

the United States.

They interfere forcibly with the relations established

between the United States and the Cherokee nation, the

regulation of which, according to the settled principles of

our constitution, are committed exclusively to the govern-

ment of the union.

They are in direct hostility with treaties, repeated in a

succession of years, which mark out the boundary that sep-

arates the Cherokee country from Georgia; guaranty to

them all the land within their boundary; solemnly pledge

the faith of the United States to restrain their citizens from

trespassing on it; and recognize the pre-existing power of

the nation to govern itself.

They are in equal hostility with the acts of congress for

regulating this intercourse, and giving effect to the treaties.

The forcible seizure and abduction of the plaintiff in

error, who was residing in the nation with its permission,

and by authority of the president of the United States, is

also a violation of the acts which authorise the chief mag-

istrate to exercise this authority.

Will these powerful considerations avail the plaintiff in

error? We think they will. He was seized, and forcibly car-

ried away, while under guardianship of treaties guarantying

the country in which he resided, and taking it under the pro-

tection of the United States. He was seized while perform-

ing, under the sanction of the chief magistrate of the union,

those duties which the humane policy adopted by congress

had recommended. He was apprehended, tried, and con-

demned, under colour of a law which has been shown to be

repugnant to the constitution, laws, and treaties of the

United States. Had a judgment, liable to the same objec-

tions, been rendered for property, none would question the

jurisdiction of this court. It cannot be less clear when the

judgment affects personal liberty, and inflicts disgraceful

punishment, if punishment could disgrace when inflicted on

innocence. The plaintiff in error is not less interested in the

operation of this unconstitutional law than if it affected his

property. He is not less entitled to the protection of the con-

stitution, laws, and treaties of his country.

* * *

It is the opinion of this court that the judgment of the

superior court for the county of Gwinnett, in the state of

Georgia, condemning Samuel A. Worcester to hard labour,

in the penitentiary of the state of Georgia, for four years,

was pronounced by that court under colour of a law which

is void, as being repugnant to the constitution, treaties, and

laws of the United States, and ought, therefore, to be

reversed and annulled.

Source:

Supreme Court Reports, Vol. 5, p.1.

Territorial Expansion, Political and Economic Developments, and International Relations 617

Andrew Jackson, Nullification

Proclamation, 1832

Proclamation issued by President Andrew Jackson on Decem-

ber 10, 1832, concerning states’ powers to nullify federal

statutes. Prepared in response to South Carolina’s Ordinance

of Nullification, which declared the Tariff Acts of 1828 and

1832 to be null and void, Jackson’s proclamation called nulli-

fication unconstitutional and an “impractical absurdity.” The

president maintained the supremacy of the federal government

and declared that no state could refuse to obey federal laws.

He warned that state governments should not consider using

state troops to oppose federal legislation, stating that “disunion

by armed force” constituted treason.

The South Carolina legislature on December 20, 1832,

issued a series of resolutions asserting that the president had

no constitutional authority to interfere in the affairs of a state

or to proclaim the repeal of state statutes, and that states had

the right to secede peaceably from the Union. South Carolina

called Jackson’s proclamation “subversive to the rights of the

states and liberties of the people.”

Congress backed up Jackson with federal legislation; the

Force Act passed by Congress on March 2, 1833, at the request

of Jackson. It granted the federal government the authority to

enforce its revenue laws with military action if necessary. At

the same time that Congress passed the Force Act, however, it

also approved the compromise Tariff Act of 1833, which

reduced the levies that South Carolina had found objection-

able. While accepting the compromise tariff, South Carolina

continued to assert its sovereignty by declaring on March 18,

1833, that the Force Act was null and void.

________________________

_______________________

Proclamation to the People of the United States

Whereas a convention assembled in the State of South

Carolina have passed an ordinance by which they declare

“that the several acts and parts of acts of the Congress of

the United States purporting to be laws for the imposing

of duties and imposts on the importation of foreign com-

modities, and now having actual operation and effect

within the United States, and more especially” two acts

for the same purposes passed on the 29th of May, 1828,

and on the 14th of July, 1832, “are unauthorized by the

Constitution of the United States, and violate the true

meaning and intent thereof, and are null and void and no

law,” nor binding on the citizens of that State or its offi-

cers; and by the said ordinance it is further declared to be

unlawful for any of the constituted authorities of the

State or of the United States to enforce the payment of

the duties imposed by the said acts within the same State,

and that it is the duty of the legislature to pass such laws

as may be necessary to give full effect to the said ordi-

nance; and

Whereas by the said ordinance it is further ordained

that in no case of law or equity decided in the courts of

said State wherein shall be drawn in question the validity

of the said ordinance, or of the acts of the legislature that

may be passed to give it effect, or of the said laws of the

United States, no appeal shall be allowed to the Supreme

Court of the United States, nor shall any copy of the

record be permitted or allowed for that purpose, and that

any person attempting to take such appeal shall be pun-

ished as for contempt of court; and, finally, the said ordi-

nance declares that the people of South Carolina will

maintain the said ordinance at every hazard, and that they

will consider the passage of any act by Congress abolish-

ing or closing the ports of the said State or otherwise

obstructing the free ingress or egress of vessels to and

from the said ports, or any other act of the Federal Gov-

ernment to coerce the State, shut up her ports, destroy or

harass her commerce, or to enforce the said acts other-

wise than through the civil tribunals of the country, as

inconsistent with the longer continuance of South Car-

olina in the Union, and that the people of the said State

will thenceforth hold themselves absolved from all further

obligation to maintain or preserve their political connec-

tion with the people of the other States, and will forthwith

proceed to organized a separate government and do all

other acts and things which sovereign and independent

states may of right do; and

Whereas the said ordinance prescribes to the people

of South Carolina a course of conduct in direct violation of

their duty as citizens of the United States, contrary to the

laws of their country, subversive of its Constitution, and

having for its object the destruction of the Union—that

Union which, coeval with our political existence, led our

fathers, without any other ties to unite them than those of

patriotism and a common cause, through a sanguinary

struggle to a glorious independence; that sacred Union,

hitherto inviolate, which, perfected by our happy Consti-

tution, has brought us, by the favor of Heaven, to a state of

prosperity at home and high consideration abroad rarely, if

ever, equaled in the history of nations:

To preserve this bond of our political existence from

destruction, to maintain inviolate this state of national

honor and prosperity, and to justify the confidence my fel-

low-citizens have reposed in me, I, Andrew Jackson, Pres-

ident of the United States, have thought proper to issue

this my proclamation, stating my views of the Constitution

and laws applicable to the measures adopted by the con-

vention of South Carolina and to the reasons they have put

forth to sustain them, declaring the course which duty will

require me to pursue, and, appealing to the understanding

and patriotism of the people, warn them of the conse-

618 ERA 4: Expansion and Reform

quences that must inevitably result from an observance of

the dictates of the convention.

Strict duty would require of me nothing more than the

exercise of those powers with which I am now or may be

hereafter invested for preserving the peace of the Union

and for the execution of the laws; but the imposing aspect

which opposition has assumed in this case, by clothing

itself with State authority, and the deep interest which the

people of the United States must all feel in preventing a

resort to stronger measures while there is a hope that any-

thing will be yielded to reasoning and remonstrance, per-

haps demand, and will certainly justify, a full exposition to

South Carolina and the nation of the views I entertain of

this important question, as well as a distinct enunciation of

the course which my sense of duty will require me to pur-

sue.

The ordinance is founded, not on the indefeasible

right of resisting acts which are plainly unconstitutional

and too oppressive to be endured, but on the strange posi-

tion that any one State may not only declare an act of

Congress void, but prohibit its execution; that they may do

this consistently with the Constitution; that the true con-

struction of that instruments permits a State to retain its

place in the Union and yet be bound by no other of its laws

than those it may choose to consider as constitutional. It is

true, they add, that to justify this abrogation of a law it

must be palpably contrary to the Constitution; but it is evi-

dent that to give the right of resisting laws of that descrip-

tion, coupled with the uncontrolled right to decide what

laws deserve that character, is to give the power of resist-

ing all laws; for as by the theory there is no appeal, the rea-

sons alleged by the State, good or bad, must prevail. If it

should be said that public opinion is a sufficient check

against the abuse of this power, it may be asked why it is

not deemed a sufficient guard against the passage of an

unconstitutional act by Congress?

There is, however, a restraint in this last case which

makes the assumed power of a State more indefensible,

and which does not exist in the other. There are two

appeals from an unconstitutional act passed by Congress—

one to the judiciary, the other to the people and the States.

There is no appeal from the State decision in theory, and

the practical illustration shows that the courts are closed

against an application to review it, both judges and jurors

being sworn to decide in its favor. But reasoning on this

subject is superfluous when our social impact, in express

terms, declares that the laws of the United States, its Con-

stitution, and treaties made under it are the supreme law

of the land, and, for greater caution, adds “that the judges

in every State shall be bound thereby, anything in the con-

stitution or laws of any State to the contrary notwithstand-

ing.” And it may be asserted without fear of refutation that

no federative government could exist without a similar

provision. Look for a moment to the consequence. If

South Carolina considers the revenue laws unconstitu-

tional and has a right to prevent their execution in the port

of Charleston, there would be a clear constitutional objec-

tion to their collection in every other port; and no revenue

could be collected anywhere, for all imposts must be

equal. It is no answer to repeat that an unconstitutional law

is no law so long as the question of its legality is to be

decided by the State itself, for every law operating injuri-

ously upon any local interest will be perhaps thought, and

certainly represented, as unconstitutional, and, as has been

shown, there is no appeal.

If this doctrine had been established at an earlier day,

the Union would have been dissolved in its infancy. The

excise law in Pennsylvania, the embargo and noninter-

course law in the Eastern States, the carriage tax in Vir-

ginia, were all deemed unconstitutional, and were more

unequal in their operation than any of the laws now com-

plained of; but, fortunately, none of those States discov-

ered that they had the right now claimed by South

Carolina. The war into which we were forced to support

the dignity of the nation and the rights of our citizens

might have ended in defeat and disgrace, instead of victory

and honor, if the States who supposed it a ruinous and

unconstitutional measure had thought they possessed the

right of nullifying the act by which it was declared and

denying supplies for its prosecution. Hardly and unequally

as those measures bore upon several members of the

Union, to the legislatures of none did this efficient and

peaceable remedy, as it is called, suggest itself. The dis-

covery of this important feature in our Constitution was

reserved to the present day. To the statesmen of South

Carolina belongs the invention, and upon the citizens of

the State will unfortunately fall the evils of reducing it to

practice.

If the doctrine of a State veto upon the laws of the

Union carries with it internal evidence of its impracticable

absurdity, our constitutional history will also afford abun-

dant proof that it would have been repudiated with indig-

nation had it been proposed to form a feature in our

Government.

In our colonial state, although dependent on another

power, we very early considered ourselves as connected by

common interest with each other. Leagues were formed

for common defense, and before the declaration of inde-

pendence we were known in our aggregate character as the

United Colonies of America. That decisive and important

step was taken jointly. We declared ourselves a nation by a

joint, not by several acts, and when the terms of our Con-

federation were reduced to form, it was in that of a solemn

league of several States, by which they agreed that they

Territorial Expansion, Political and Economic Developments, and International Relations 619

would collectively form one nation for the purpose of con-

ducting some certain domestic concerns and all foreign

relations. In the instrument forming that Union is found

an article which declares that “every State shall abide by

the determinations of Congress on all questions which by

that Confederation should be submitted to them.”

Under the Confederation, then, no State’ could legally

annul a decision of the Congress or refuse to submit to its

execution; but no provision was made to enforce these

decisions, Congress made requisitions, but they were not

complied with. The Government could not operate on

individuals. They had no judiciary, no means of collecting

revenue.

But the defects of the Confederation need not be

detailed. Under its operation we could scarcely be called a

nation. We had neither prosperity at home nor considera-

tion abroad. This state of things could not be endured, and

our present happy Constitution was formed, but formed in

vain if this fatal doctrine prevails. It was formed for impor-

tant objects that are announced in the preamble, made in

the name and by the authority of the people of the United

States, whose delegates framed and whose conventions

approved it. The most important among these objects—

that which is placed first in rank, on which all the others

rest—is “to form a more perfect union.” Now, is it possible

that even if there were no express provision giving su-

premacy to the Constitution and laws of the United States

over those of the States, can it be conceived that an instru-

ment made for the purpose of “forming a more perfect

union “than that of the Confederation could be so con-

structed by the assembled wisdom of our country as to

substitute for that Confederation a form of government

dependent for its existence on the local interest, the party

spirit, of a State, or of a prevailing faction in a State? Every

man of plain, unsophisticated understanding who hears

the question will give such an answer as will preserve the

Union. Metaphysical subtlety, in pursuit of an impractica-

ble theory, could alone have devised one that is calculated

to destroy it.

I consider, then, the power to annul a law of the

United States, assumed by one State, incompatible with

the existence of the Union, contradicted expressly by the

letter of the Constitution, unauthorized by its spirit, incon-

sistent with every principle on which it was founded, and

destructive of the great object for which it was formed.

After this general view of the leading principle, we

must examine the particular application of it which is made

in the ordinance.

III

The preamble rests its justification on these grounds: It

assumes as a fact that the obnoxious laws, although they

purport to be laws for raising revenue, were in reality

intended for the protection of manufactures, which pur-

pose it asserts to be unconstitutional; that the operation of

these laws is unequal; that the amount raised by them is

greater than is required by the wants of the Government;

and, finally, that the proceeds are to be applied to objects

unauthorized by the Constitution. These are the only

causes alleged to justify an open opposition to the laws of

the country and a threat of seceding from the Union if any

attempt should be made to enforce them. The first virtu-

ally acknowledges that the law in question was passed

under a power expressly given by the Constitution to lay

and collect imposts; but its constitutionality is drawn in

question from the motives of those who passed it. How-

ever apparent this purpose may be in the present case,

nothing can be more dangerous than to admit the position

that an unconstitutional purpose entertained by the mem-

bers who assent to a law enacted under a constitutional

power shall make that law void. For how is that purpose

to be ascertained? Who is to make the scrutiny? How

often may bad purposes be falsely imputed, in how many

cases are they concealed by false professions, in how many

is no declaration of motive made? Admit this doctrine,

and you give to the States an uncontrolled right to decide,

and every law may be annulled under this pretext. If,

therefore, the absurd and dangerous doctrine should be

admitted that a State may annul an unconstitutional law,

or one that it deems such, it will not apply to the present

case.

The next objection is that the laws in question operate

unequally. This objection may be made with truth to every

law that has been or can be passed. The wisdom of man

never yet contrived a system of taxation that would oper-

ate with perfect equality. If the unequal operation of a law

makes it unconstitutional, and if all laws of that description

may be abrogated by any State for that cause, then,

indeed, is the Federal Constitution unworthy of the slight-

est effort for its preservation. We have hitherto relied on it

as the perpetual bond of our Union; we have received it as

the work of the assembled wisdom of the nation; we have

trusted to it as to the sheet anchor of our safety in the

stormy times of conflict with a foreign or domestic foe; we

have looked to it with sacred awe as the palladium of our

liberties, and with all the solemnities of religion have

pledged to each other our lives and fortunes here and our

hopes of happiness hereafter in its defense and support.

Were we mistaken, my countrymen, in attaching this

importance to the Constitution of our country? Was our

devotion paid to the wretched, inefficient, clumsy con-

trivance which this new doctrine would make it? Did we

pledge ourselves to the support of an airy nothing—a bub-

ble that must be blown away by the first breath of disaf-

fection? Was this self-destroying, visionary theory the

work of the profound statesmen, the exalted patriots, to

620 ERA 4: Expansion and Reform

whom the task of constitutional reform was intrusted? Did

the name of Washington sanction, did the States deliber-

ately ratify, such an anomaly in the history of fundamental

legislation? No; we were not mistaken. The letter of this

great instrument is free from this radical fault. Its lan-

guage directly contradicts the imputation; its spirit, its evi-

dent intent, contradicts it. No; we did not err. Our

Constitution does not contain the absurdity of giving

power to make laws and another to resist them. The sages

whose memory will always be reverenced have given us a

practical and, as they hoped, a permanent constitutional

compact. The father of his country did not affix his

revered name to so palpable an absurdity. Nor did the

States, when they severally ratified it, do so under the

impression that a veto on the laws of the United States was

reserved to them or that they could exercise it by implica-

tion. Search the debates in all their conventions, examine

the speeches of the most zealous opposers of Federal

authority, look at the amendments that were proposed;

they are all silent—not a syllable uttered, not a vote given,

not a motion made to correct the explicit supremacy given

to the laws of the Union over those of the States, or to

show that implication, as is now contended, could defeat

it. No; we have not erred. The Constitution is still the

object of our reverence, the bond of our Union, our

defense in danger, the source of our prosperity in peace. It

shall descend, as we have received it, uncorrupted by

sophistical construction, to our posterity; and the sacrifices

of local interest, of State prejudices, of personal animosi-

ties, that were made to bring it into existence, will again be

patriotically offered for its support.

The two remaining objections made by the ordinance

to these laws are that the sums intended to be raised by

them are greater than are required and that the proceeds

will be unconstitutionally employed. The Constitution has

given, expressly, to Congress the right of raising revenue

and of determining the sum the public exigencies will

require. The States have no control over the exercise of

this right other than that which results from the power of

changing the representatives who abuse it, and thus pro-

cure redress. Congress may undoubtedly abuse this dis-

cretionary power; but the same may be said of others with

which they are vested. Yet the discretion must exist some-

where. The Constitution has given it to the representatives

of all the people, checked by the representatives of the

States and by the Executive power. The South Carolina

construction gives it to the legislature or the convention of

a single State, where neither the people of the different

States, nor the States in their separate capacity, nor the

Chief Magistrate elected by the people have any represen-

tation. Which is the most discreet disposition of the

power? I do not ask you, fellow-citizens, which is the con-

stitutional disposition; that instrument speaks a language

not to be misunderstood. But if you were assembled in

general convention, which would you think the safest

depository of this discretionary power in the last resort?

Would you add a clause giving it to each of the States, or

would you sanction the wise provisions already made by

your Constitution? If this should be the result of your

deliberations when providing for the future, are you, can

you, be ready to risk all that we hold dear, to establish for

a temporary and a local purpose, that which you must

acknowledge to be destructive, and even absurd, as a gen-

eral provision? Carry out the consequences of this right

vested in the different States, and you must perceive that

the crisis your conduct presents at this day would recur

whenever any law of the United States displeased any of

the States, and that we should soon cease to be a nation.

The ordinance, with the same knowledge of the future

that characterizes a former objection, tells you that the

proceeds of the tax will be unconstitutionally applied. If

this could be ascertained with certainty, the objection

would with more propriety be reserved for the law so

applying the proceeds, but surely cannot be urged against

the laws levying the duty.

These are the allegations contained in the ordinance.

Examine them seriously, my fellow-citizens; judge for

yourselves. I appeal to you to determine whether they are

so clear, so convincing, as to leave no doubt of their cor-

rectness; and even if you should come to this conclusion,

how far they justify the reckless, destructive course which

you are directed to pursue. Review these objections and

the conclusions drawn from them once more. What are

they? Every law, then, for raising revenue according to the

South Carolina ordinance, may be rightfully annulled,

unless it be so framed as no law ever will or can be framed.

Congress have a right to pass laws for raising revenue and

each State have a right to oppose their execution—two

rights directly opposed to each other; and yet is this absur-

dity supposed to be contained in an instrument drawn for

the express purpose of avoiding collisions between the

States and the General Government by an assembly of the

most enlightened statesmen and purest patriots ever

embodied for a similar purpose.

In vain have these sages declared that Congress shall

have power to lay and collect taxes, duties, imposts, and

excises; in vain have they provided that they shall have

power to pass laws which shall be necessary and proper to

carry those powers into execution, that those laws and that

Constitution shall be the “supreme law of the land, and

that the judges in every State shall be bound thereby, any-

thing in the constitution or laws of any State to the con-

trary notwithstanding”; in vain have the people of the

several States solemnly sanctioned these provisions, made

them their paramount law, and individually sworn to sup-

port them whenever they were called on to execute any

Territorial Expansion, Political and Economic Developments, and International Relations 621